205 CMR 144.06 - Independent Testing Laboratory Certification and Auditing
(1) Certification Process. In order to provide testing services of electronic gaming devices in Massachusetts, a person must be certified as an independent testing laboratory in accordance with 205 CMR 144.06. The certification process will take place as follows:
(a) The commission may issue yearly a request for applications from applicants interested in being certified as independent testing laboratories.
(b) Upon receipt of an application in the form prescribed in 205 CMR 144.06(5) the gaming technology laboratory and the bureau shall conduct any investigation they deem reasonable, including any visit, review or inspection of each independent testing laboratory seeking certification to evaluate the laboratory's qualifications and capabilities pursuant to 205 CMR 144.06(3).
(c) The applicant is required to submit a $5,000 application fee with its application for certification. If the Commission's costs associated with the investigation, including site visits, inspections, and background investigations, of the applicant during the certification evaluation period, in accordance with the fee schedule posted by the Commission to its website, exceed the application fee, the applicant shall pay the additional amount within 30 days after notification of insufficient fees or the application shall be rejected.
(d) Upon the conclusion of evaluation and upon full payment of any costs associated with the certification process, the gaming technology laboratory, with the input of the bureau, shall issue a written report to the commission and to the applicant. The commission shall determine whether to initiate a process for a public hearing or adjudicatory proceeding. However, the commission may only utilize the public hearing process with the applicant's consent.
(e) If the commission determines that an adjudicatory proceeding will be held, the commission shall conduct an adjudicatory proceeding in accordance with 205 CMR 101.00: M.G.L. c. 23K Adjudicatory Hearings.
(f) If the commission determines that a public hearing should be held, the commission shall review the gaming technology laboratory's report and make a final decision granting or denying the certification at a public hearing. The commission will issue a notice in advance of the public hearing stating the date, time and place of the hearing.
(g) Certification as an independent testing lab shall be valid for one year and shall automatically renew annually thereafter upon payment of a renewal and audit fee of $2,000. The commission may audit the compliance of the certified independent testing laboratory with commission requirements annually or more often if needed. The commission may revoke the registration of a certified independent testing laboratory if the testing laboratory no longer meets the requirements of M.G.L. c. 23K and 205 CMR.
(h) The commission shall maintain a list of certified independent testing laboratories along with the categories of electronic gaming device that each independent testing laboratory may test.
(2) Categories of Certification. Each independent testing laboratory must be certified for each category of testing for which the laboratory seeks to provide results. The categories of testing include:
(a) Electronic games and game variations;
(b) Electronic gaming devices outlined in 205 CMR 144.01(2) and gaming device modifications;
(c) Gaming associated equipment and gaming associated equipment modifications;
(d) Cashless wagering systems and cashless wagering system modifications;
(e) Inter-casino linked systems and inter-casino linked system modifications;
(f) Mobile gaming systems and mobile gaming system modifications;
(g) Interactive gaming systems and interactive gaming system modifications; and
(h) Any other category of testing that the commission may deem appropriate.
(3) Standards for Certification. To qualify for certification, the independent testing laboratory, must:
(a) Be independent pursuant to 205 CMR 144.06(4)
(b) Be accredited in accordance with ISO/IEC 17025 by an accreditation body that is a signatory to the International Laboratory Accreditation Cooperation Mutual Recognition Agreement;
(c) Demonstrate suitability in accordance with M.G.L. c. 23K, §§ 12 and 16 by clear and convincing evidence after considering reciprocity from other jurisdictions;
(d) Demonstrate that it is technically competent in testing the category of game, device, or system in which it is seeking certification; and
(e) Demonstrate that it is technically competent to test compliance with the applicable Massachusetts statutes, regulations, standards and policies.
(4) Independence. An independent testing laboratory must be independent at all times while certified by the commission.
(a) To be considered independent from a manufacturer, distributor, or operator pursuant to 205 CMR 144.06(3)(a), the independent testing laboratory, including its employees, management, directors, owners, compliance committee members and gaming regulatory advisors, with the exception of the independent testing laboratory's external accountants and attorneys:
1. Must not have a financial or other interest, direct or otherwise, in a manufacturer, distributor, or operator of any game, electronic gaming device, associated equipment, cashless wagering system, inter-casino linked system, mobile gaming system or interactive gaming system, or any component thereof or modification thereto, regardless of whether or not the person or entity is licensed, registered, or otherwise does business in Massachusetts;
2. Must not participate, or otherwise be involved in the design, development, programming, or manufacture of any game, electronic gaming device, associated equipment, cashless wagering system, inter-casino linked system, mobile gaming system or interactive gaming system, or any component thereof or modification thereto;
3. Must not have any other interest in or involvement with a manufacturer, distributor, or operator that could cause the independent testing laboratory to act in a manner that is not impartial; and
4. Such individuals shall not serve in any capacity with a manufacturer, distributor, or operator beyond the scope of the independent testing laboratory's engagement pursuant to 205 CMR 144.04.
(b) The restrictions in 205 CMR 144.06(4)(a) shall not be interpreted to limit an independent testing laboratory, or the above listed individuals, from providing consulting services to a manufacturer, distributor, or operator, provided that such services do not directly or indirectly indicate, suggest, or imply how to design, develop, program or manufacture a game, electronic gaming device, associated equipment, cashless wagering system, inter-casino linked system, mobile gaming system or interactive gaming system, or any components thereof or modification thereto.
(5) Form of Application. An application for certification as an independent testing laboratory shall be in the form prescribed by the commission and contain:
(a) The required application fee pursuant to 205 CMR 144.06(l)(c);
(b) A completed business entity disclosure form as set forth in 205 CMR 134.07(6): Business Entity Disclosure Form - Gaming Vendor - Primary for the applicant entity;
(c) Completed multi-jurisdictional personal history disclosure forms as set forth in 205 CMR 134.07(1): Multi-jurisdictional Personal History Disclosure Form for Key Gaming Employees- Executive and Gaming Vendor Qualifiers for each person who would be a gaming vendor qualifier pursuant to 205 CMR 134.04(4): Gaming Vendor Qualifier if the applicant were a gaming vendor;
(d) Copies of all ISO/IEC 17025 certification and accreditation materials except if the independent testing laboratory is only seeking registration for the testing of games and game variations;
(e) All ISO required internal controls, policies and procedures, except if the independent laboratory is only seeking registration for the testing of games and game variations;
(f) Detailed description of the testing facilities;
(g) Detailed description of available testing staff and staff qualifications, including education, training, experience and skill levels;
(h) Detailed description of available testing equipment;
(i) Copies of documented policies, systems, programs, procedures and instructions to assure the quality of test results;
(j) Copies of all test scripts to be used for testing against the applicable Massachusetts statutes, regulations, standards, and policies.
(k) A statement subscribed by the applicant that:
1. The information being provided to the commission is accurate and complete;
2. The applicant agrees to cooperate with all requests, inquiries, or investigations of the commission;
3. The applicant acknowledges that the commission shall retain jurisdiction over the independent testing laboratory in any matter involving an electronic gaming device;
4. The applicant acknowledges that it will comply with M.G.L. c. 23K, § 13(b) and (c) and update the commission in accordance with 205 CMR 144.06(6);
5. The applicant agrees to indemnify and hold harmless the Commonwealth of Massachusetts and the commission, and each of their members, agents, and employees in their individual and representative capacities against any and all claims, suits and actions, brought against the persons named in 205 CMR 144.06(5)(k)5. by reason of any inspections or certifications performed by the applicant as a certified independent testing laboratory, and all other matters relating thereto, and against any and all expenses, damages, charges and costs, including court costs and attorney fees, which may be sustained by the persons and entities named in 205 CMR 144.06(5)(k)5. as a result of said claims, suits and actions; and
(l) any additional information that the commission may require.
(6) Notification Requirements. Certified independent testing laboratories shall:
(a) notify the commission of any change in ownership of the certified independent testing laboratory if it is privately held or any change in ownership resulting in shareholding of 5% or more of the independent testing laboratory or any of its holding or intermediary companies; any change in directors, executives, or key management or employees of the independent testing laboratory, and any other material changes to the information included in its application for registration or the information submitted in conjunction with or subsequent to its application within 30 days of such change;
(b) no later than by the 15th day of each January, inform the commission in writing of any changes to the information that was contained on the certified independent testing laboratory's application for certification or submitted in conjunction with or subsequent to its application, or that no changes have occurred since the last reporting date;
(c) maintain copies of the results of any ISO/IEC 17025 audits or reviews and notify the commission in writing of the of the availability of the results within 15 days of when they become available to the certified independent testing laboratory and provide copies to the commission upon request.
(d) notify the commission immediately of any material issues concerning any electronic gaming device that it tested for use in Massachusetts;
(e) notify the commission immediately of any attempts by a manufacturer, distributor, or operator to improperly influence the certified independent testing laboratory, or any of its employees, managers, or owners, in or in connection with any testing of electronic gaming devices for use in Massachusetts; and
(f) timely provide the commission with such other information as the commission may request or require.
(7) Continued Obligations. Certified independent testing laboratories shall abide by the following requirements while certified:
(a) In the interest of preserving a competitive gaming industry, a certified independent testing laboratory shall not implement or maintain any procedure or policy or take any action that would inhibit or prevent a manufacturer, distributor or operator that has otherwise been deemed suitable for doing business in Massachusetts by the commission from submitting a game, gaming device, associated equipment, cashless wagering system, inter-casino linked system, mobile gaming system or interactive gaming system, or any component thereof or modification thereto, for testing for use in Massachusetts, or that would call into question or tend to erode the independence of the certified independent laboratory from any clients that utilize its services.
(b) All testing shall be performed by a person directly employed by the certified independent testing laboratory. The certified independent testing laboratory shall not assign, delegate, subcontract, or otherwise engage any person not directly employed by the certified independent testing laboratory for any testing for which the laboratory has been certified. The certified independent testing laboratory shall provide the commission every six months, or upon request as the commission requires, with a list and description of all amounts paid by or invoiced to licensed gaming vendors for costs of electronic gaming device testing or otherwise.
(c) A certified independent testing laboratory shall implement and maintain a hiring and background check process, which shall be submitted to the commission and subject to the commission's approval, that ensures, at a minimum, that no person is hired in a position involving testing relating to Massachusetts, or in a position overseeing or managing an employee in such a position, who has:
1. been convicted of a felony or other crime involving embezzlement, theft, fraud or perjury; or
2. Had any gaming license, registration or other like credential revoked or committed any act which is a ground for the revocation of a gaming license, registration or other professional credential held by the person or would have been a ground for the revocation of a gaming license, registration or other professional credential had the person held such license, registration, or credential.
(d) A certified independent testing laboratory shall handle all information and data prepared or obtained as part of the testing process as confidential.
(e) A certified independent testing laboratory shall implement and maintain security and access control systems designed to secure and protect the confidentiality of all equipment, software, and other information entrusted to it as part of the testing process.
(f) The commission may, as appropriate, periodically provide further guidance as to what is required of a certified independent testing laboratory through industry notices or other written communications.
(g) If a certified independent testing laboratory hires an individual who was previously employed by, or performed any work for, a manufacturer, distributor or operator within one year prior to the individual's date of employment with the independent testing laboratory, the certified independent testing laboratory shall not permit that person to test any electronic gaming device for use in Massachusetts, for which the person had any involvement with, whatsoever, while he or she was employed by the manufacturer, distributor or operator for a period of one year from the individual's date of employment with the independent testing laboratory.
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